This
case was referred to United States Magistrate Judge Patrick
A. White, consistent with Administrative Order 2003-19 of
this Court, for a ruling on all pre-trial, nondispositive
matters and for a report and recommendation on any
dispositive matters. On July 21, 2017, Judge White issued a
report, recommending that the Court deny Defendant Kennedy
Terrell Walker's motion to correct, set aside, or vacate
his sentence pursuant to 28 U.S.C. § 2255 and dismiss
the case. (Report of Magistrate, ECF No. 16.) Walker has
filed objections (ECF No. 17) to the report to which the
Government has responded (ECF No. 19). Having reviewed de
novo those portions of Judge White's report to which
Walker objected and having reviewed the remaining parts for
clear error, the Court adopts the report and recommendation
in its entirety except for the recommendation that a
certificate of appealability not issue.

Walker
premises his objections on the United States Supreme
Court's ruling in Johnson v. United States, 135
S.Ct. 2551 (2015), which found the definition of
"violent felony" under the residual clause of the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii),
void for vagueness. Walker argues, first, that his conviction
under 18 U.S.C. § 924(c), for carrying a firearm during
and in relation to a crime of violence, is no longer lawful
in light of Johnson. Second, Walker similarly
submits that his sentence enhancement under the "Three
Strikes" provision of 18 U.S.C. § 3559(c) is also
unlawful. Lastly, Walker contends that his prior robbery
offenses do not otherwise qualify as either ACCA or §
3559 predicates after Johnson. All of Walker's
arguments are unavailing.

To
begin with, Walker's § 924(c) challenge is
foreclosed by the Eleventh Circuit's binding decision in
Ovalles v. United States,861 F.3d 1257 (11th Cir.
2017). In that case, the Court held that "Johnson's
void-for-vagueness ruling does not apply to or invalidate the
'risk-of-force' clause in § 924(c)(3)(B)."
Id. at 1265. Although a mandate has not yet issued
in Ovalles, and the appellant in that case has
recently filed a petition for rehearing en banc,
Ovalles nonetheless remains the law in this circuit.
See Martin v. Singletary,965 F.2d 944, 945 (11th
Cir. 1992) (noting that even where a mandate has not issued,
an order issued by the Eleventh Circuit "is the law in
this circuit unless and until it is reversed, overruled,
vacated, or otherwise modified by the Supreme Court of the
United States or by this court sitting en banc").

Lastly,
because the Court finds that Johnson does not apply
to either § 924(c) or § 3559(c), it need not
evaluate Walker's contention that his prior robbery
offenses do not otherwise qualify as either ACCA or §
3559 predicates.

The
Court has considered Judge White's report, the
Petitioner's objections, the record, and the relevant
legal authorities. The Court finds Judge White's report
and recommendation cogent and compelling. The Court
affirms and adopts Judge White's report
and recommendation (ECF No. 16), with the
exception of his recommendation not to issue a certificate of
appealability. The Court finds that a certificate of
appealability should issue as to whether Johnson
applies to the provisions of § 924(c) and §
3559(c), as discussed above, since it appears from
Walker's citations that the questions raised are indeed
debatable and, in fact, are being debated, among reasonable
jurists.

The
Court denies the petition for writ of habeas
corpus (ECF No. 1). The Court issues a certificate of
appealability. Finally, the Court directs the Clerk to
close this case.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Done
...

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